Moxam v Liquor Licensing Bd
| Jurisdiction | Cayman Islands |
| Judge | (Graham, J.) |
| Judgment Date | 26 May 1998 |
| Date | 26 May 1998 |
| Court | Grand Court (Cayman Islands) |
(Graham, J.)
R.D. Alberga, Q.C., and Ms. S.A. Bodden for the applicant;
P. Lamontagne, Q.C. and P.A. Broadhurst for the objectors;
S. Hall-Jones, Senior Crown Counsel, for the Liquor Licensing Board.
(1) -H (Minors), In re, [1996] A.C. 563; [1996] 1 All E.R. 1, observations of Lord Nicholls of Birkenhead applied.
(2) -R. v. Lancashire JJ., In re Tyson”s AppealELR(1870), L.R. 6 Q.B. 97; 40 L.J.M.C. 17, considered.
(3) -Sharp v. WakefieldELR, [1891] A.C. 173; sub nom. Sharpe v. Wakefield, [1886–90] All E.R. Rep. 651; (1891), 60 L.J.M.C. 73, considered.
(4) -Thompson (Graham) & Associates Ltd. v. Liquor Licensing Bd., 1988–89 CILR 25, not followed.
Liquor Licensing Law (Laws of the Cayman Islands, 1963, cap. 87), s.12(1): The relevant terms of this sub-section are set out at page 184, lines 18–20.
s.13: The relevant terms of this section are set out at page 184, lines 22–30.
Liquor Licensing (Amendment) Law, 1968 (Law 17 of 1968), s.3: The relevant terms of this section are set out at page 184, lines 32–33.
Liquor Licensing Law, 1974 (Law 11 of 1974), s.5(1): The relevant terms of this sub-section are set out at page 184, lines 37–39.
Liquor Licensing Law (1996 Revision) (Law 8 of 1985, revised 1996), s.5: The relevant terms of this section are set out at page 185, lines 3–9.
s.8(1): ‘A Board may not grant a licence to any person unless it is satisfied that such person is-
(a) of good character, and exhibits to the Board a certificate signed by the Commissioner showing his record of criminal convictions, if any, over the preceding fifteen years . . . .””
s.9(1): ‘A Board may not grant a licence unless satisfied that the premises in respect of which the application is made-
. . .
(d) are situated at a location where they will be of service to the public . . . .””
s.9(2): The relevant terms of this sub-section are set out at page 187, lines 23–28.
s.17(1): ‘At any application for the grant of a licence . . . any member of the public who has given at least seven days notice of objection in writing to the Chairman may appear and be heard in objection to the grant of such licence.
. . .
Provided that, where in the case of such objection by a member of the public the Board is of the opinion that the objection is malicious, frivolous or vexatious, the Board may order the objector to pay the licensee any costs he has incurred thereby and to pay to the Board . . . a further sum . . . for each hour . . . of the Board”s time taken up by hearing and investigating the objector”s complaint.’
Alehouse Act 1828 (9 Geo. IV, c.61), s.1: The relevant terms of this section are set out at page 185, lines 28–30.
Liquor Licensing Act 1964 (c.26), s.3: The relevant terms of this section are set out at page 185, lines 32–33.
Liquor-licensing-Liquor Licensing Board-purpose of licensing control-commercial need for licensed premises irrelevant to exercise of Board”s discretion under Liquor Licensing Law (1996 Revision)-whether premises located where of service to public, under s.9(1)(d) guided by s.9(2) only-public served by waterfront off-licence primarily cruise-ship passengers
Liquor-licensing-Liquor Licensing Board-natural justice-Chairman to ensure objections to licence raised under Liquor Licensing Law (1996 Revision), s.17(1) presented in fair and reasonable manner-duty to prevent oppressive and improper cross-examination of applicant-preliminary hearing to establish admissibility of evidence recommended
The appellant applied for judicial review of the Liquor Licensing Board”s refusal to grant him a licence under the Liquor Licensing Law (1996 Revision).
The appellant proposed to sell packaged liquor to cruise-ship passengers from premises on the waterfront at George Town. He applied to the Liquor Licensing Board for a ‘package licence.’ Objections to the application were received by the Board from a number of trade competitors and other local businessmen engaged in competition with the company with which the appellant was associated.
At the hearing of the application, the appellant”s character was attacked by the objectors on the grounds that he had committed undetected offences within the past 15 years and that he was involved in a campaign by a foreign-owned company to take over large areas of the Cayman economy. It was also submitted that the demand for packaged liquor was already fully met by other retail outlets.
The Board concluded that no more premises licensed for the sale of packaged liquor were needed in the area and it was satisfied for the purposes of s.9(1)(d) of the Law that the premises in respect of which the application had been made were not situated in a location where they would be of service to the public. These reasons were repeated in a letter to the applicant”s attorney in response to a request for written reasons for the Board”s decision. The letter referred specifically to case law supporting this approach.
The applicant applied for judicial review of the decision.
He submitted that (a) the Board”s discretion to grant or refuse a liquor licence under s.5(1) of the law was restricted to the criteria set out in ss. 8
and 9 and therefore (i) any offence for which he had not received a criminal conviction was irrelevant to the Board”s consideration of his character under s.8(1); (ii) the Board had erred in following English authority as to the discretion conferred on licensing justices to refuse a licence on the ground that a neighbourhood did not need any or any more licensed premises; (iii) alternatively, those guidelines had been misapplied, since the discretion in England was to be exercised to refuse licences only for reasons of public order and not economics or the restraint of trade; (b) since the concept of ‘need,’ in the sense of meeting demand for licensed premises, had been repealed in Cayman legislation, no wider discretion than that conferred by ss. 8 and 9 was to be inferred from the use of the word ‘may’ in s.5(1); and (c) it was clear from s.9(2) of the Law that the significance of the location of the premises was limited to considerations of public health, public safety, planning and traffic.
The Board submitted in reply that (a) its refusal of a packaged liquor licence had been solely on the ground that the criterion in s.9(1)(d) of the Law had not been met; (b) both English and local authority supported the existence of a wide discretion in the Board, so that the commercial need or otherwise for licensed premises in the relevant area was a valid determinant of whether premises would be of service to the public; alternatively (c) its discretion went beyond the consideration of the criteria in ss. 8 and 9(1), since s.5(1) simply provided that the Board ‘may grant . . . any licences.’
Held, quashing the decision of the Board:
(1) The factors to be considered upon an application for a liquor licence under the Liquor Licensing Law (1996 Revision) were set out in ss. 8 and 9 and did not include considerations of commercial need. The history of the Cayman licensing legislation showed that the Board”s discretion to grant licences had been restricted since 1974 and the use of the words ‘may grant’ in s.5 were to be read as conferring only a limited discretion. The Board had misdirected itself by referring to English authority based on a wider statutory discretion which was not relevant to the regulation of duty-free packaged liquor sales to cruise-ship passengers, and had misinterpreted the reference therein to ‘the needs of the neighbourhood.’ Under the Law, only matters of the kind set out in s.9(2) (e.g. concerning traffic, public health and safety, and planning regulations) were relevant to whether the premises would be of service to the relevant public (i.e. cruise-ship passengers) in their location. Accordingly, the Board”s decision would be quashed and the Board would be required to rehear the application (page 183, lines 6–10; page 184, line 40 – page 185, line 1; page 185, lines 14–23; lines 32–38; page 186, lines 14–17; lines 26–33; page 187, line 12 – page 188, line 9).
(2) Furthermore, the Board”s handling of the hearing had raised serious questions as to procedural fairness. The Chairman of the Board, as a
legally qualified officer, had failed in his task of ensuring a fair hearing, since the allegations of the applicant”s past criminal activity and business interests had been made in a manner which showed no regard for the admissibility of evidence or the propriety of the occasion. In future, so that lay members of the Board would not be misled by inadmissible evidence, written submissions should be served on the Board seven days in advance, for its consideration at a preliminary hearing under the advice of the Chairman. In this way, purely political arguments would be eliminated and justice would be seen to be done (page 182, lines 1–26; page 188, line 15 – page 189, line 6).
| GRAHAM, J.: On August 5th, 1996 Renard Moxam, the applicant, | |
| 25 | applied to the Liquor Licensing Board for the grant of a liquor licence |
| under s.10(1)(b) of the Liquor Licensing Law (1996 Revision). The | |
| application was for a ‘package licence,’ that is |
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Jacques Scott & Company Ltd v Moxam
...The Board”s decision was quashed and it was ordered to rehear the application. The proceedings in the Grand Court are reported at 1998 CILR 178. On appeal, the appellant submitted that (a) the Board”s power to grant licences was not limited in the way suggested by the Grand Court, since s.1......